Abalone: From the ocean floor through the courtroom door

The Abalone Recovery and Management Plan of 2005 as well as all the new rules and regulations that have been adopted up to the present, still leave abalone taking in a state of flux and the takers and enforcers in a quandary about how best to handle the confusion that surrounds the much sought after mollusk.

In order to preserve abalone for future generations and to deter poachers and cheaters as well as those pickers and divers whose greatest sin is ignorance of the law, there is still much lacking in the enforcement, prosecution and sentencing of violators, according to the many "players" interviewed for this series.

In their accumulative and collective wisdom, they agree that sometimes the bad is still treated as good and the good are still treated as bad. Or, as Kalina said, "They are making law-abiding people into criminals." Kalina is in a good position to know. He has served as a public defender, a prosecutor and now as a private attorney.

The former lead prosecutor at Ten Mile Court thinks the pendulum has swung too far. He believes the fees, fines and punishment have tilted from too lenient to too excessive.

Kalina said when he first started dealing with abalone cases as a deputy district attorney in 1997 the fines were a mere $25 and almost all cases were treated as infractions. Fines now range from as low as just under $700 to $44,000 for an especially egregious felony commercial taking of abalone. (Sentencing parameters will be dealt with in more detail in part 3 of this series.)

As a private defense attorney, Kalina now believes that technical violations should be dealt with as infractions.

When pressed on the idea of standardized sentencing, Kalina said he was in full agreement with uniform sentencing. In fact, he explained that there would be no swinging of the pendulum at all if there were no fixed point from which the pendulum could swing.

That fixed point is standardized sentencing. Prosecutors and judges need the flexibility to let the pendulum do its work. Every case is different and those who prosecute the crimes and those who hand out sentences need the discretion to make the punishment fit the crime.

New ab regulations

The California Fish and Game Commission (CFGC) recently released regulation changes for the 2014 abalone season that began April 1.

For Mendocino County, the yearly take has been reduced from 24 to 18 and the fishery-wide start time has been moved from a half-hour before sunrise to 8 a.m. (The new rules and regulations will be covered more completely in part 4 of this series.) That's both good and bad news for many who deal with the abalone conundrum. The winners are the game wardens, the resource (abalone) and future generations of abalone pickers and divers.

The bad news is that poachers who like to get as many abalone as they can before game wardens arrive on the scene will have to do their illegal deeds in broad daylight. Another bit of bad news, even for the honest abalone takers, is that around 25 percent of all low or negative tides happen before 8 a.m. and the low tides are the best time to take abalone. That option will no longer be legally available.

Both marine biologist Jerry Kashiwada and Lt. Dennis McKiver of the California Department of Fish & Wildlife maintain that the new 8 a.m., starting time has nothing to do with daylight and dark but rather with the low tides. Studies show that cutting out 25 percent of the taking time during negative tides has the likely result of cutting out about 25 percent of the abalone taken. If these studies prove to be correct, the time change will have worked precisely as intended.

Another new regulation that is bound to cause a great deal of consternation for the locals on the Mendocino Coast is the fact that in Marin and Sonoma counties, the yearly take will be reduced to nine abalone per taker; however, the abalone report cards will all have 18 tags, including Marin and Sonoma counties. Simply put, when an abalone picker or diver in Marin or Sonoma county reaches his yearly limit of nine, he will likely come to Mendocino County and take nine more and those nine will be absolutely legal.

Abalone Watch

The organization that serves as the only unofficial watch-dog on the coast in regards to all aspects of abalone is a group of citizen volunteers known simply as MAW or Mendocino Abalone Watch. They provide training sessions to those who care deeply about the abalone resource and its survival and availability for future generations.

These citizen watch dogs attempt to provide eyes and ears for game wardens and other law enforcement personnel but they also try to educate would-be abalone takers through the use of handouts concerning rules and regulations, chats with rock pickers and divers, visibility, taking videos, checking bags for bag limits and sundry other activities.

MAW not only tries to spot abalone offenders and their nefarious activities but also tries to keep them out of trouble.

Perhaps one of the most nagging problems haunting the entire abalone enterprise is what Bruce Leaman, a coordinator and spokesman for MAW, said when asked to elaborate on the somewhat convoluted situation created by a great deal of differing opinions. Leaman answered in two words, "Egos Rule."

He said that Judge Clayton Brennan did not understand that folks from the Bay Area and the Central Valley do not come up here to put food on the table.

Leaman said that MAW's goal is to stop the poaching and inadequate sentencing in abalone matters. "We either stand against wrong or we don't stand at all," he said.

He concluded, "We want more severe community service time for more severe violations and we want it done in the county where they took the abalone." For Leaman, greater monetary fines are not the answer. Community service is.

The constitution allows a citizen in good standing an avenue to redress his grievances, an avenue that has been followed to the letter by MAW. They met with Presiding Judge Richard Henderson and then, at his suggestion, they met with Deputy District Attorney Tim Stoen and worked out a new bail schedule and sentencing guidelines for abalone violators and violations. They were presented to Judge Brennan in August of last year.

Guidelines

When Judge Brennan received the guidelines, he implemented them for about two weeks and then did the hard work of trying to get to the bottom of the abalone bail schedule and the rules mandated by the California Judicial Council along with suggestions from the DFW and the California Fish and Game Commission. He worked out a standardized sentencing schedule with lots of "wiggle" room in order to treat each case according to its singular merits (for examples, see part 3 next week).

When asked if egos were involved and whether or not he should have been invited to attend the sessions between Judge Henderson and MAW and later with Deputy DA Stoen, Judge Brennan said he never viewed MAW's sentencing guidelines as a mandate.

He did say, however, that MAW could really be a positive influence in the abalone scenario if they used their assets to print brochures in Mandarin, Cantonese, Vietnamese and any other Asian languages that apply to abalone rock pickers and divers. The brochures could be handed out at the local abalone "hot spots" and would explain the rules and regulations in the language of the would-be violators of those rules.